MASANGO v MASSTOW INVESTIMENTS (PVT) LTD and OTHERS (356 of 2024) [2024] ZWHHC 356 (20 August 2024)

1 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 CASE 1 THOMAS MASANGO versus MASSTOW INVESTIMENTS (PVT) LTD and TENDAI JEMWA and SOLE SERVICES (PVT) LTD and REGISTRAR OF COMPANIES N. O and REGISTRAR OF DEEDS N. O and NETSAI JEMWA (NEE MAGADZIRE) CASE 2 THOMAS MASANGO versus TENDAI JEMWA And DAVIES AND COMPANY LIMITED And MICHAEL O’LEARY And TIMOTHY PATRICK O’LEARY HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 27 September 2023 & 20 August 2024 Opposed Applications-Rescission of Judgement in terms of rule 27(1) and rule 29(1) M Mavhiringidze, for the applicant in Case 1 and Case 2 E Mubaiwa, for the 1st, 2nd and 6th respondents in Case 1 and 1st respondent in Case 2 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 MUSITHU J: This judgment deals with two matters that were consolidated and heard at the same time at the request of the parties’ counsel. In HC 5103/22, which is case 1 herein, the applicant applies for rescission of judgement in terms of rule 27(1) of the High Court Rules, 2021. The order which the applicant seeks to rescind was granted by this court in HC 6231/21. The applicant prays for the following relief: “IT IS ORDERED THAT: 1. The judgement granted in default by Chitapi J on the 28 th of July 2022 be and is hereby rescinded and set aside. 2. The Registrar of High Court be and is hereby ordered to set the matter for hearing in terms of the rules. 3. The party that opposes pays costs of suit on a legal practitioner and client scale.” In HC 3994/22, which is Case 2 herein, the applicant applies for rescission of a judgement in terms of rule 29(1) of the High Court Rules, 2021 and for his joinder in HC2424/22. The order sought is couched as follows: “IT IS ORDERED THAT: 1. The Order by consent granted under Case No. HC2424/22 be and is hereby rescinded as being granted in error and without participation of applicant. 2. The applicant is granted leave to apply for joinder in Case No 2424/22 within 7 days of issuing of this order by the Registrar. 3. The 1st respondent to pay costs of suit on a legal practitioner and client scale.” Background to Case 1 and the applicant’s case The applicant and the second respondent are brothers in-law having married blood sisters. The applicant averred that the two were engaged in a partnership in which they carried various business activities which include property development, management, jewelry, motor vehicle trade and micro-finance. The applicant claims that the two parties used proceeds from their partnership to purchase a property known as Number 159 Domboshava Road Borrowdale Harare (the property). The applicant and the second respondent went on to purchase a shelf company, Masstow Investments (Pvt) Ltd (Masstow or the Company), that had a tittle deed in which they decided to put the property they were purchasing. Upon purchase of the shelf company, they HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 only changed the CR14 and not the shareholding structure of the company. Upon the dissolution of their partnership sometime in 2012, the applicant and the second respondent entered into what they termed Property Share Agreement wherein they shared various properties among them the property which is the subject matter of the proceedings under HC 2424/22. Further according to the applicant, disputes arose over the implementation of the property share agreement and they submitted themselves to arbitration. The arbitrator was Mr J R Tsivama, a legal practitioner practising with Sawyer & Mkushi. The applicant averred that during the arbitration proceedings the second respondent clearly explained how they both acquired the property and how they shared the land shares among themselves, thus confirming that the said property was jointly acquired. The arbitrator determined that that the property was supposed to be dealt with in terms of Company law. The applicant claims that sometime in August 2021 he called for an extra-ordinary general meeting of Masstow Investiments, as per the arbitrator’s recommendation and the second respondent attended the meeting. It was at the meeting that the applicant discovered that the second respondent had fraudulently removed him from the directorship of the company in 2018. The applicant averred that he then reported the second respondent and Masstow Investments (Pvt) Ltd for fraud and the case was at that time pending at Rotten Row Magistrate Court. The applicant further averred that the second respondent who is now the alter ego of the company, instituted proceedings to evict the applicant from the property under HC453/21. The matter was referred to trial after KATIYO J found out there were material disputes of fact concerning the acquisition of the property. The applicant averred that he had demonstrated good and sufficient cause for the setting aside of the judgment. He further averred that the Sheriff’s return of service showed that the Notice of Set down was served on his legal practitioners’ former address which is number 22 Auld Crescent Eastlea Harare. The nature of the service was said to have been done by affixing on the gate after a diligent search by the Sheriff. The applicant averred that it was unreasonable for the Sheriff to leave an urgent notice of set-down at a gate where there was not even a banner or signpost that showed that the legal practitioners were still operating from that place. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 The applicant averred that his legal practitioners moved from the old address sometime in January 2022 and they served the notice of change of address on the Registrar of High Court and the Sheriff on the 31 January 2022. The applicant averred that the Sheriff was aware of the change of address and had been serving notices of set-down at the new address. The applicant further averred that the second respondent and his legal practitioner were aware of the new address having served many pleadings at the new address in various matters pending before this court. They had even attended a round table conference as shown in Annexure “K”, being the joint Pre-Trial Conference Minute. The applicant averred that ethically the second respondent’s legal practitioner ought to have contacted his legal practitioner as they had been handling several matters involving the parties together. The judgment was therefore snatched and ought to be set aside. The applicant further averred that in the main matter, he had sufficient cause as the matter involved four land shares in the affluent suburb of Borrowdale, one land share with a buildup school hence this matter deserved to be disposed of on the merits. The applicant averred that he had a good and sufficient cause in the main matter as he had demonstrated in the evidence placed before the court that the property was jointly acquired. The applicant averred that in the event that the first, second and sixth respondents opposed this application, he would seek costs on a legal practitioner and client scale as it was clear that the notice of set-down was served at a former address. First, Second and Sixth Respondents’ Case in Case 1 The application was opposed by the first, second and the sixth respondents. The first and sixth respondents filed supporting affidavits to the second respondent’s opposing affidavit. The first respondent’s affidavit was deposed by Tendayi Jemwa, the second respondent herein, in his capacity as director of the first respondent. In opposition, the second respondent raised as a preliminary point, that the applicant had failed to establish a cause of action in instituting the current proceedings. The applicant’s founding papers did not meet the requirements of an application of this nature. No averments were made as regards the existence of a good and sufficient cause as required by the law. The HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 application did not address the bona fides of the defense as well as the prospects of success in the main matter. The application was therefore improperly before the court, and it ought to be struck off the roll. The second respondent further averred that the main matter in which the default judgment was granted was a special plea in which the applicant ought to have addressed his defense to the special plea and how he expected the third respondent herein, from whom he was seeking transfer of shares was culpable, yet it was a mere former employee. The applicant’s defence to the plea of prescription was also not set out. There was thus no cause of action as the applicant herein addressed the merits of a matter that was not before the court. The judgment that he sought to rescind did not concern itself with what the applicant had averred in his papers. The application was therefore misdirected and ought to be struck off the roll with costs on a punitive scale as it was a waste of time. As regards the merits, the second respondent submitted that it was the duty of the applicant’s legal practitioner to write to the registrar notifying the court of the change of address. The failure to do so was a willful disregard of the rules on his part and the court should not take lightly to legal practitioners who never accepted blame for their disregard of the rules The second respondent further averred that the applicant never took responsibility for his sins and neither for those of his legal practitioners but always blamed others for his disregard of the law, non-performance of contracts or the abject disregard of the court’s rules. The second respondent further averred that the proceedings under case number HC 4531/21 were between the applicant and the first respondent and not himself. The second respondent also averred that it was him who kept the business afloat and the partnership as an ongoing concern as the applicant never met his obligations. The second respondent also averred that he purchased the property on his own for USD$140 000.00, and this position had been confirmed by the court order HC 2424/22. The applicant was accused of lying that the parties purchased the property for $50 000.00, because of the seller’s conveyancer who fraudulently prepared another agreement of sale. The tittle deed and the Capital Gains Tax clearance certificate reflected that the purchase price was $50 000.00 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 Zimbabwean dollars, yet the Zimbabwean dollar had been demonetized at the time and was not a currency. The second respondent also denied that the parties purchased a shelf company together and averred that he alone purchased the company sometime in 2018 from the incorporators. He also averred that he appointed the applicant, his brother Patrick Jemwa, and his friend Jacob Mugugu to the board of directors to protect his interests in the company as the applicant was one his confidants at that time. The second respondent insisted that the applicant was a mere employee of the company as he only held a ceremonial title of director for formalities, and not because he owned any shares in the company. The second respondent claimed that he purchased the property and later transferred it into the first respondent’s name, being the shelf company and the property had been in the name of the company ever since. The second respondent also averred that the applicant only came to benefit from the property after he agreed to give him a portion of the property to offset mutual debts between the two of them, prompting the parties to proceed to arbitration. The arbitral award clearly showed that the issues referred to the arbitrator concerned the applicant’s obligations, and he (applicant) chose not to pursue the enforcement of the property share agreement because he could not enforce an agreement in which he had not performed. The second respondent also contended that the applicant never became the holder of the stands as a shareholder in the company, but because the second respondent had given him same to offset mutual debts. The second respondent almost lost the property because of the applicant’s failure to pay rates. The applicant never cared because he knew that the property was not his and had never paid for it. The second respondent also contented that surely a party who had an interest in the property would have done something to pay USD$60 000.00 plus debt owed to the City of Harare. The second respondent averred that he paid the debt on his own because the property had always been his and the mortgage for the loan, he had secured to pay off the debts had since been cancelled. The second respondent also challenged the applicant to produce proof of payment of any rates he made since 2012. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 The second respondent filed a supporting affidavit through Patrick Jemwa. He associated himself with the averments made by the second respondent in his opposing affidavit. The sixth respondent also deposed to a supporting affidavit in which she associated herself with the deposition of the second respondent. Applicant’s answering affidavit In his answering affidavit, the applicant averred that he had sufficiently demonstrated that he had good and sufficient cause to have the default judgment set aside. He also averred that the requirements for the rescission of a judgement in the High Court did not require bona fides of defense and prospects of success in main matter but good and sufficient cause. The applicant contended that it was impossible to talk about the special plea without getting into the merits of the matter. The applicant averred that the property was purchased for US$50 000.00 as shown on the Title Deed. The High Court Order in HC 2424/22 was fraudulently acquired after the second respondent chose not to cite the applicant, and instead cited disinterested parties who were unaware of the property dispute. An application had already been made before this court to have that order set aside. The applicant further denied being appointed by the second respondent to the board of directors and challenged the second respondent to show proof in the form of a receipt that showed that he purchased the shelf company on his own in 2008. The applicant maintained that the parties purchased the company together in 2009 and that was the reason why the CR14 showed that the applicant and the second respondent were appointed directors on the same date together with the second respondent’s incorporators on 7 September 2009. Furthermore, the applicant averred that the second respondent had never been made a shareholder to date and that the purported transfer of shares to the second respondent and sixth respondent was a nullity as it was done fraudulently. That fraud was the subject of the summons case. The applicant averred that the property was purchased by the first respondent which the applicant jointly owned with the second respondent as confirmed by the Arbitral Award and Property Sharing Agreement. The applicant also averred that the second respondent in rei- HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 vindicatio proceedings pending before this court alleged that the applicant was allowed to use the stands in his capacity as director, and now the second respondent was alleging that he gave him four stands to settle mutual debts. The second respondent was therefore contradicting himself. The applicant queried how it was possible for one to borrow US$120 000.00 to settle a debt for US$60 000.00. The applicant also submitted that the second respondent fraudulently mortgaged the jointly owned property for his self-benefit. The applicant also insisted that the first respondent was a shelf company that did not even have a bank account. The applicant also queried if a shelf company could borrow funds from a bank without any financial record. The applicant also challenged the second respondent to produce proof that he paid the City of Harare US$60 000.00, as per the letter of demand using the mortgage funds. CASE 2 Background to the applicant’s case The application was made in terms of Rule 29(1) of the High Court Rules. The dispute revolves around the same property referred to in Case 1. The background facts are thus more or less similar. The order that the applicant wants rescinded was granted by this court per MHURI J, on 18 May 2022 in HC 2424/22. In that matter, Tendai Jemwa who is the first respondent herein was the applicant. The first respondent was Davies & Company (Pvt) Ltd, second respondent was Michael O’leary and the third respondent was Timothy Patrick O’leary. The court order reads as follows: “IT IS ORDERED BY CONSENT THAT: 1. The Application be and is hereby granted. 2. The agreement of sale between the applicant and the first respondent for a property commonly known as stand number 159 Domboshawa Road, Borrowdale, Harare dated December 2009 be and is hereby held to be valid. 2.1 The second respondent be and is hereby held to have transferred a property commonly known as stand number 159 Domboshawa Road, Borrowdale Road, Harare on the strength of an agreement of sale between the applicant and the first respondent. 3. The applicant be and is hereby held to have paid the full purchase price, being USD$140, 000.00 for stand number 159 Domboshawa Road Belvedere, Harare, in full and final settlement of the purchase price. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 4. There shall be no order as to costs.” As averred in Case 1, the applicant claims to have an interest in the property which is the subject of the dispute in the judgment he wants to have rescinded. There are several disputes pending before the court in which the ownership of that property is contested between the applicant and the first respondent herein. The applicant contends that it was wrong for the applicant to go behind his back and seek the above order based on falsehoods. The order granted in his absence affected him in that it was confirming a wrong and fraudulent agreement of sale to be the reason for transfer of title in the property. The applicant averred that the first respondent had without his consent mortgaged the property and he lodged a criminal complaint of fraud, which was pending at Rotten Row Magistrate Court. Further according to the applicant, the first respondent influenced Masstow Investments to evict him from the four land shares he was occupying under HC 4531/21 on the basis of the rei vindicatio. That matter was referred to trial by KATIYO J on the basis that there were disputes of fact that were unresolvable on the papers. Further according to the applicant, he caused summons for a declaratur to be issued under case HC 6231/21 in which he sought the nullification of the 2018 CR14 that illegally removed him from the directorship of the company, and the nullification of share certificates issued in favor of the first respondent and his wife. The applicant also submitted that the first respondent deliberately hid all the above information to the court and most importantly, the fact that two matters involving the same property were pending before this court under HC 6231/21 and HC 4531/21. Furthermore, the applicant contended that had this information and facts been available to the court, he strongly believes that the Court could not have granted the order it granted. Furthermore, the applicant averred that the agreement of sale referred to in the above order was not authentic. The proper agreement that was placed before the Zimbabwe Revenue Authority (ZIMRA) for capital gains tax purposes must have identified Masstow Investments as the purchaser and not the first respondent. The applicant also averred that the purchase price in the tittle deed of the property was USD$50 000.00. The agreement of sale referred to in the court HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 order could not have been the agreement of sale behind the transfer of the property. The court made an error which warranted the rescinding of the order. The applicant also averred that he had prospects of success if joined to the proceedings under HC2424/22 since that application was based on falsehoods. The applicant also contended that the order granted in his absence was being used by the first respondent as a defense in other criminal matters and that he believed that the first respondent intended to use it in other matters that were pending before this court under HC6231/21 and HC4531/21. The applicant averred that the second to the fourth respondents did not oppose the application since they were not aware of who was behind Masstow Investments. They also consented to the order sought in that matter to cover up a clear fraud which was perpetrated against ZIMRA as the tittle deed clearly showed that the purchase price was US$50 000.00 and not the US$140 000.00 on the alleged agreement of sale. First Respondent’s Case In opposing the applicant’s case the first respondent raised the following preliminaries at the outset. The first was that the applicant had made material non-disclosures which he disqualified him as a credible witness. The applicant had not told the court that he signed the same agreement of sale that he was now attacking, in his capacity as a witness. The applicant had admitted under oath in criminal proceedings under CRB 8841/21, that the signature was indeed his. Further according to the first respondent, the applicant was also not disclosing that he denied under CRB 8841/21 that he had made an application under case number HC 6231/21, to have shares transferred to him in his responses in the criminal proceedings, yet in para 21 of his founding affidavit he admitted having instituted the same proceedings. The applicant was accused of habitually lying under oath and for that reason, the court was urged to disregard his evidence. The applicant was also accused of failing to disclose that he was claiming interest in the property through shareholding and directorship in the company as the property was already registered in the name of the Company. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 The second preliminary point was that the applicant lied under oath. This was because he sought to attack the same agreement that in the criminal proceedings in CRB 8841/21 he admitted having witnessed. His deposition in the present proceedings was directly at variance with the evidence he gave under oath in the criminal proceedings. The first respondent averred that the applicant was lying under oath when he alleged that the agreement of sale that was placed before ZIMRA reflected the purchase price of the property was US$50, 000, yet the correct amount reflected on the title deed was $50, 000.00. This was the amount that appeared on the ZIMRA CGT certificate requested by applicant through Zimbabwe Republic Police (ZRP) Borrowdale. The first respondent also averred that this clearly showed that the purchase price was declared in Zimbabwean Dollars through the fraudulent acts of the conveyancer, Stewart Nyamushaya who was on the run from the law and whose practice was under curatorship. As regards the merits, the first respondent averred that the applicant was only a witness to the agreement of sale as confirmed by his signature on the same agreement, and his admission of same in the criminal proceedings under CRB 8841/21. What the respondent sought to confirm was the agreement of sale and the purchase price which led to the transfer of the property into his shelf company. The first respondent submitted that there was no privity of contract between the applicant and the seller nor any interest of his that needed to be protected in the agreement of sale as was being alleged. The first respondent averred that in seeking the order granted by MHURI J, he wanted to dispel some false accusations that were being made against him that he had stolen the property from the sellers through a fraudulent agreement of sale. Further according to the first respondent, he had no choice but to approach the seller to confirm that he purchased property from him at the stated price. The applicant as a witness had no interest to confirm the authenticity of that agreement, thus the order was not erroneously sought nor erroneously granted in the absence of the applicant. The first respondent also averred that the applicant was not privy to the agreement of sale thus he could not expect to have been cited to confirm his signature, as a witness. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 The first respondent also averred that the previous partnership transactions had been entered into with both parties’ names appearing in any agreement, and it thus boggles the mind why in this particular transaction, the applicant would have elected to appear only as a witness to the agreement if indeed the transaction was a partnership transaction. Further according to the first respondent, there is no way that the applicant would have appeared only as a witness in the transaction if he had paid part of the purchase price for the property as he claimed. The Submissions Case 1 and Case 2 At the commencement of the hearing, counsel agreed to employ an omnibus approach in their submissions. They would make global submissions on issues that were common in both cases, and address individually, those issues that were peculiar to the individual cases. In respect of Case 1, Mr Mavhiringidze submitted that a good and sufficient cause had been established to justify the granting of the relief sought. The matter involved a dispute with tentacles spread in many other matters that were pending before the court. The matter could not be dealt with on the basis of a default. Pleadings had been closed and this confirmed that there was an intention to prosecute the matter on the part of the applicant. The notice of set down had been delivered on the applicant’s previous address and therefore there was no willful default. In his heads of argument, the applicant averred that the applicant’s preliminary point that the applicant had failed to establish a cause of action had no merit. This was because the requirement of good and sufficient cause entailed hearing the merits of an application for rescission and therefore it could not be raised as a preliminary point. In any event, the applicant had in his founding affidavit demonstrated that the main matter ought to be dealt with on the merits and as he had prospects of success. In response, Mr Mubaiwa submitted that the application was fatally defective for failure to demonstrate the bonafides of the defence which carried prospects of success. The applicant had not alluded to prospects of success which made the application defective. The applicant had also not alluded to the circumstances of the main matter that he wanted to come back to, which was the special plea. The applicant had failed to file a replication to the special plea within ten HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 days as required by r 42(9). The applicant was thus barred. The application did not simultaneously seek the removal of the bar. Even if the present application succeeded, the applicant remained barred. In any case, the failure to file a replication meant that the special plea was unopposed. As regards the default, Mr Mubaiwa submitted that between the application for the set down and the service of the set down of the matter by the sheriff, the applicant had the onus to notify all the interested parties of the change of his address which he had not done. In respect of Case 2, Mr Mavhiringidze submitted that the judgment they wanted rescinded was granted in error. The requirements for the setting aside of such judgment as set out in Zimbabwe Power Company v Magodo & 3 Ors1, had been satisfied. The applicant was also seeking his joinder in those proceedings as he had an interest in the property that was affected by the judgment granted in his absence. That judgment sought to declare the first respondent as the sole owner of the property, yet there were two other cases that were pending in which the ownership of that same property was at stake. The first respondent was also accused of making a material non-disclosure, because when that judgment was granted, he did not tell the court that there were two other matters that were already pending. In response, Mr Mubaiwa submitted that the applicant did not have locus standi to seek rescission of the judgment that was granted in his absence. That matter was founded on contract in which the applicant was not involved. The order sought to be rescinded was granted by consent and a third party could not challenge the validity of an agreement that they were not party to. A party could only be joined to proceedings in which relief was sought against them. The relief sought had nothing to do with the applicant herein. That explained why the applicant was not seeking joinder in the present matter, but just rescission. The first respondent could still ask for judgment. Mr Mubaiwa further submitted that the other matters were irrelevant to the present matter and did not need to be disclosed. As regards the merits of the matter, it was submitted that the alleged agreement which gave birth to the consent order was not even attached. The agreement could not just be attacked 1 HH 123/23 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 on the basis of a consent order. The applicant could also not make allegations of fraud on behalf of ZIMRA. In any case the property belonged to the company and currently there was no lawsuit that sought to take the property away from the company. Analysis Case 1 The preliminary point concerning the absence of a cause of action was raised in the context of the relief that the applicant sought herein. The default judgment that the applicant wants rescinded was no ordinary judgment. In HC 6231/21, the first, second and sixth respondents had raised a special plea of prescription to the plaintiff’s claim against them. So, while the plaintiff was in default, the order that CHITAPI J granted on 28 July 2022, had the effect of upholding the special plea in bar and dismissed the plaintiff’s claim with costs on the legal practitioner and client scale. The respondents’ argument is simple. The applicant did not address the requirements of good and sufficient cause in seeking to have the default order set aside. The application was made in terms of r 27(1) of the High Court Rules, 2021 (the Rules). Rule 27(2) of the rules provides that if the court is satisfied that there is “good and sufficient cause” to do so, the court may set aside the judgment concerned and give leave to defend or prosecute the claim. The court in Stockill v Griffiths2, set out the requirements of good and sufficient cause in the context of the old r 63 of the old High Court rules to mean: the reasonableness of the applicant’s explanation for the default, the bona fides of the application to rescind the judgment and the bona fides of the defence on the merits of the case which carries some prospects of success. These factors must be considered holistically in conjunction with each other. A perusal of the applicant’s founding affidavit shows that the applicant dedicated much of his time to explain the reasonableness of his default. Paras 23 to 28 deal with the explanation for the default. It is only in paras 29 and 30 that the applicant makes some attempt to relate to the requirement of good and sufficient cause. In para 29 he states as follows: 2 1992 (1) ZLR 172(SC) at 173D-F HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 “In the main matter, I have sufficient cause as the case involves four land shares in the affluent suburb of Borrowdale, one land share with a built-up school hence this matter deserves to be heard on the merits.” In para 30 he makes the following submission: “I have good and sufficient cause in the main matter as I have demonstrated in the facts stated herein above which shows the property was jointly acquired.” The founding affidavit does not mention the special plea at all or what the default judgment he wants rescinded was all about. The order by CHITAPI J that the applicant wants rescinded is only mentioned in passing in para 31 of the founding affidavit in which the applicant seeks costs on the legal practitioner and client scale against any respondent that opposes the application. The merits of the main matter and the prospects of success were not alluded to. In his oral submissions counsel for the applicant sought to dismiss the reliance on the preliminary point arguing that doing so entailed interrogating the merits of the matter. He also submitted that at any rate, the applicant had in his founding affidavit demonstrated that the main matter ought to be dealt with on the merits and as he had prospects of success. That was a lukewarm response to such a critical submission which strikes at the core of the applicant’s case. The superior courts have already determined that the failure to explain good and sufficient cause for the setting aside of a judgment is fatal in applications of this nature. In Doves Funeral Assurance (Private) Limited v Harare Motorway (Private) Limited & 4 Ors3, the court explained the position of the law as follows: “[31] Whether or not an applicant has shown good cause for the granting of an application of this nature, is in the discretion of the court. However, for the court to be able to exercise its discretion judiciously, it places reliance on whether or not the applicant has tendered a reasonable explanation for the non-compliance and has also established the prospects of success thereof. The applicant, having refused to do so, it is my view that the respondents’ preliminary objections have merit and ought to be upheld.” In the Constitutional Court judgment of Dinha v The State4, the court also weighed in as follows: “In assessing the prospects of success, the Court is tasked with assessing whether the applicant has established a prima facie case which justifies that he be given a day in court. More is required 3 SC 64/23 at p 10 4 CCZ 11/20 AT P 6 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 to be established than that there is a mere possibility of success. An applicant must show on a balance of probabilities that he or she or it has reasonable prospects of success and in doing so he or she or it must point to some fault or misdirection in the judgment he or she or it seeks to impugn. Where it is found that the explanation for non-compliance with the Rules is not reasonable, there ought to be good prospects of success for the application to be granted. It is incumbent upon the Court to determine whether the applicant has discharged that onus on a balance of probabilities.” The propriety of the application before the court can be interrogated at the outset so that the court does not waste time venturing into the merits of a hopeless application. The court must be satisfied that it has a proper application before it. An application is proper if it satisfies the legal requirements of an application of that nature for which relief is sought. Prospects of success are an essential ingredient of good and sufficient cause that must be demonstrated by an applicant in a r 27(2) application. The court is invited to exercise discretion judicially based on the explanation placed on record by the applicant as regards the bona fides of the application and prospects of success thereof. The applicant is required to discharge that onus on a balance of probabilities. As observed, the default judgment the applicant wants rescinded was an order upholding the defendants’ plea in bar in HC 6231/21. The applicant failed or chose to be reticent in applying his mind to whether there exists good and sufficient cause for the court to exercise its discretion and rescind that order that was granted in default. The applicant was expected to address the court on the prospects of success of his defence to the special plea. Further, it also emerged that the applicant had not even filed a replication to the special plea. The applicant was thus barred. He does not seek the removal of that bar in the present application. The absence of a replication means that the legal and factual averments made in motivating the special plea ought to be taken as having been admitted. The court therefore determines that there is merit in the respondents’ preliminary point. The application is not properly before this court, and it must be struck off the roll. Having made that finding, it becomes unnecessary to deal with the other requirements of good and sufficient cause such as the explanation for the default, as well as the merits of the matter. The court cannot HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 exercise discretion based on the reasonableness of the explanation for the default alone, in respect of an application that is clearly defective. Analysis Case 2 This application was made in terms of r 29 of the High Court Rules, 2021. I must spare a moment and comment on the shoddy and disorderly manner in which cause of action was pleaded in the applicant’s founding affidavit. The founding affidavit is all rumbling and the applicant’s story unfolds in a disorganized manner. One has to read through it back and forth in order to appreciate the genesis of the applicant’s complaint. It is only in para 24, towards the very end of the founding affidavit that reference is made to the order that the applicant wants rescinded. That court order is introduced as annexure I, meaning that before it, there are annexures A to H, which were first introduced before the very key document that founds the applicant’s cause of action was placed before the court. A court must not be given the added responsibility of reconstructing a case for a litigant. The founding affidavit must present the applicant’s case in a clear, concise and logical manner that is easier to follow and relate to the law. In his opposing affidavit, the first respondent raised preliminary points concerning some material nondisclosures that were made by the applicant and that the applicant had made certain misrepresentations under oath. His testimony could therefore not be believed. It was alleged that in criminal proceedings that had taken place before the criminal court, the applicant had admitted to signing the agreement of sale referred to above as a witness, and not as a party. He was also accused of lying about the correct purchase price of the property. In his answering affidavit, the applicant had dismissed the alleged nondisclosures and that he was lying under oath. He averred that the transcript of the record from the criminal court was not stamped or certified by the trial magistrate, and it had some missing information meaning that it was not a true reflection of the proceedings in that court. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 The court determines that the record of proceedings that the first respondent sought to rely on in advancing the preliminary points is not reliable. As correctly pointed out by the applicant, that record is not stamped, and neither was it endorsed by the trial court as the correct record of the proceedings that took place in that court. At any rate, the issues raised by the first respondent concerning the applicant’s interest in the property and the purchase price at which the property was purchased are the very issues that ought to be resolved on the merits of the matter in which judgment is sought to be rescinded. They raise factual disputes which must be resolved upon hearing the parties’ respective versions. There is therefore no merit in the preliminary points raised. As regards the merits of the application, r 29 of the High Court Rules in terms of which the application was launched states as follows: “The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary - (a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or (b) …………..” That provision is couched pretty much the same way as rule 449 of the old High Court rules, 1971. In Muvungani v Newham Financial Services (Pvt) Ltd HH 57-17 it was held that: “The requirements for setting aside a default judgment in terms of r449 are settled. The applicant must satisfy 1. that the default judgment must have been erroneously sought or erroneously granted. 2. such judgment must have been granted in the absence of the applicant and 3. applicant must be affected by the judgment” In Nyingwa v Moolman 1993 (2) SA 508 (Tk) it was held that an order is erroneously granted if at the time of the order there existed a fact which a judge was unaware of, and which would have precluded the judge from giving judgment had he been aware of it. The genesis of the applicant’s complaint is the property referred to in the factual background of both Case 1 and Case 2. There is no doubt a live dispute exists concerning the way that property was acquired and the parties’ rights in that property. In his heads of argument, the applicant identified two issues HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 for consideration, and these are: whether the first respondent ought to have even instituted the proceedings in HC 2424/22, and whether applicant is an interested party to the proceedings. The prerogative to institute proceedings is entirely that of a party to a dispute driven by the desire to seek a resolution of the dispute by the court as an uninterested umpire. Whether the institution of proceedings in HC 2424/22 was driven by the bona fide desire to place a real dispute before the court for adjudication is outside the purview of the current proceedings. It is for the court seized with those proceedings to decide of that issue. The next issue is whether the applicant is an interested party to the proceedings in HC 2424/22. The applicant averred that the order granted in default affected him in that it was confirming a wrong and fraudulent agreement of sale to be the reason for the transfer of title to Masstow Investments. In para 10 of his heads of argument, the applicant makes the following averments: “In the present matter fraud is apparent as the first respondent deliberately withheld a lot of information in respect of claims involving the property in dispute that it is a subject of an arbitral award, and did not even disclose that there are other pending cases involving ownership and division of such property” Mr Mubaiwa contended that if applicant was made a respondent in HC 2424/22, he would have no right to oppose as relief sought does not affect him. Mr Mubaiwa further submitted that the applicant did not have a cause of action to oppose the application because the agreement at the centre of attention in that matter did not concern him. Counsel’s submission is not entirely correct. The applicant’s case is that the parties used proceeds of their partnership business to purchase the property in dispute. In the order that the applicant wants rescinded, the first respondent presents himself as the sole purchaser of the property. It therefore follows that in granting an order that identifies the first respondent as the purchaser of the property in the applicant’s absence, this court would have made a finding that the first respondent is the owner of the property. The applicant contends that the property was acquired through the joint efforts of the parties. The first respondent is aware of the applicant’s interest in that property. He should not have gone behind the applicant’s back and obtained an order that effectively closes the door HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 on the applicant. The order in HC 2424/22, therefore denies the applicant an opportunity to present his side of the story before the court. In para 6.3 of his opposing affidavit, the first respondent averred that he approached the seller to confirm that he purchased the property from him, and the applicant as a witness had no interest to confirm the authenticity of that transaction. In his award, the arbitrator made the following finding about the property: “It is common cause that this property is registered in the name of Masston Investments (Pvt) Ltd of which Messrs Jemwa and Masango are both directors and shareholders. It is also common cause that when the parties acquired this property their intention was to subdivide it and share the properties thereon equally…”5 (Underlining for emphasis) The above finding confirms that the applicant has a substantial interest in the property. The resolution of that dispute does not require a piecemeal approach as is being done herein. That the parties submitted themselves to arbitration, and certain obligations arising from the property were also part of the issues before the arbitrator also confirms that the applicant is a key player in matters involving the property. The mere fact that there is no specific relief sought against the applicant in HC 2424/22, does not necessarily mean that he should not be heard especially if the order granted by the court affects him. The court may as well be persuaded not to grant the order on the basis of the evidence placed before it by the applicant. For instance, the order granted by the court in HC 2424/22, suggests that the property was sold to the applicant for US$140, 000.00. The deed of transfer in the name of the company suggests that the property was sold for $50,000.00. It is not clear whether that figure denotes payment in United States dollars or Zimbabwean dollars. That alone confirms that there was something wrong with the way the transfer of the property was done to the company. The other issue that arises is what is the true purchase price of the property? The applicant and the first respondent have been trading accusations, each accusing the other of telling falsehoods. The court cannot be asked to endorse a purchase price which is at variance with the purchase price that is recorded in the Deed of Transfer itself, and yet it is in respect of the same 5 See p 35 of the record in Case 1 HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 property. The Deed of Transfer is a legal document which records everything that one needs to know about a property. As things stand, the order granted by this court is at variance with the Deed of Transfer. It shows that there could be some irregularity in the way the property was transferred to the company. The court should not be approached to endorse falsehoods or transactions that infringe upon the law. Courts do not exist to settle scores or sanitise transactions based on material falsehoods and misrepresentations. The court must be invited to decide on the matter before it after hearing the evidence of interested parties especially in the present matter, where circumstances exhibit clear signs of fraud. I dare say that the papers before the court point to some elaborate fraud in the manner the property was transferred which may call for some criminal investigation. The State may have been seriously prejudiced of tax revenue if the conflicting figures denoting the purchase price are anything to go by. In my view, there is merit in the applicant’s case in Case 2. The papers may have been inelegantly prepared, but that does not detract from the substance of the live dispute that involves the parties herein. As an interested party in the property, the applicant needs to be heard by this court before it confirms the alleged arrangement between the applicant (first respondent herein) and the respondents in HC 2424/22. I note though that in para 2 of the draft order, the applicants want this court to grant him leave to apply for joinder within seven days of the granting of this order. Joinder of a party is a process sanctioned by the law. In terms of r 32(12)(b), the joinder of a party may be done at the instance of the court or an interested party. One does not require the leave of a court to be joined to proceedings for as long as they are able to assert their interest in any cause or matter before the court. The applicant did not explain why he needs the leave of the court to institute the joinder proceedings. Disposition Resultantly it is ordered that: In respect of Case 1 1. The application for rescission of the default judgement granted in HC 6321/21 be and is hereby dismissed. HH 356 - 24 HC5103/22 HC3994/22 Ref case 6231/21 Ref case 2424/22 2. The applicant shall bear the first, second and sixth respondent’s costs of suit. In respect of Case 2 1. The order by consent granted under Case No HC 2424/22 be and is hereby rescinded as having been granted in error. 2. The first respondent shall bear the applicant’s costs of suit. MUSITHU J: ........................................................ Mavhiringidze and Mashanyare, applicant’s legal practitioners in Case 1 and Case 2 Bherebhende Law Chambers, 1st, 2nd and 6th respondents’ legal practitioners in Case 1 and for the 1st respondent in Case 2